THE HIGH REPRESENTATIVE IN BOSNIA-HERZEGOVINA

Abstract

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How difficult it is to introduce democratic institutional arrangements in a territory that had mainly experience with authoritarian government is illustrated by the case of Bosnia-Herzegovina (BH). The Dayton Peace Accord of 1995 established the (Office of the) High Representative (OHR) to help the new republic of BH develop into a democracy. After more than 25 years, one cannot but conclude that the creation of democratic institutions has not worked for lack of collaboration between the three most important ethnic groups. At best, BH is a controlled democracy, held together by OHR. The development of this office is analyzed in terms of a neo-institutional framework. We argue that the republic survives so far on the basis of negative legitimacy (accepting the OHR as the binding institutional arrangement). This also suggests that neither developments in a past long gone nor more recent developments (i.e., ‘strong’ path-dependency) prohibit a development toward positive legitimacy (i.e., ‘lean’ path-dependency). The case of BH also illustrates that democracy is hard, if not impossible, to establish when people are internally divided and where (some) domestic and international actors exploit these divisions in the international arena.

Keywords

Democratization Controlled Democracy Office of the High Representative OHR Bosnia-Herzegovina Positive/negative Legitimacy Lean/strong Path-dependency Comparative Politics Political Institutions Serbs Croats Bosniaks Kosovo

We recognized that implementation would be at least as difficult as the negotiations themselves. (Holbrooke 1998, 205)

In the decades following the Second World War there was such optimism in the world about the spread of representative democracies. In the early 1970s there were some 30 democracies in a total of 150 countries (Diamond 2002, 2).¹ By 2002 this had increased, according to one count, to 121 in a total of 192 territorial states (Torfason and Ingram 2010). However, the percentage of so-called “illiberal democracies,” where human rights are not very well protected, where there is substantial corruption and thus not a very strong rule of law, has increased as well (Torfason and Ingram 2010, 5, 62). In Diamond's view, democracies have become shallower because a variety of countries that appeared to move toward democracy have since settled for a more authoritarian type of rule. Especially countries established after the fall of the Berlin Wall experience the same economic, political, social, and international challenges as the newly independent states in Africa and Asia did in the 1950s and 1960s (Diamond 2002, 4). Some authors even speak of democratic backsliding under the influence of populist political officeholders (Bauer et al. 2021). Some such countries use the label “democracy” but are, in fact, a controlled democracy (sometimes also referred to as a managed democracy), which is generally a euphemism for autocratic political leadership and single-party control of the polity. This backsliding has happened in EU-member states such as Hungary and Poland, but also in Turkey. And, of course, many West European countries have experienced similar challenges to democracy from right-wing extremist parties.

In this article we analyze the case of Bosnia-Herzegovina as an example of a different kind of controlled democracy, that is, one where a single institution, the Office of High Representative (OHR)—that is backed by democratic countries (notably EU countries and the United States)—holds the country together, while at the same time experiencing serious domestic divisions and international (especially Russian) efforts to derail the fragile unity. It is the institution of OHR that operates on the basis of, as we call it, negative legitimacy, since its functioning is not rooted in values, norms, and customs shared among the three main populations of the republic. The case of Bosnia-Herzegovina (hereafter Bosnia) shows how difficult it is to establish democracy via imposition, and how easily countries with more authoritarian agendas can exploit domestic, internal divisions to advance the weakening of democracy.

More than 25 years ago, under the Dayton Peace Agreement (DPA), adopted on November 21, 1995, the (Office of the) High Representative (OHR) was established through the General Framework for Peace (GFAP) on December 14, 1995. Since August 2021, Christian Schmidt (a former German minister) holds the position of High Representative. The OHR initially had the status of a diplomatic mission representing the international community (however defined) and was charged with supervising the implementation of the DPA. In order to assure international support for the agreement, a Peace Implementation Council (PIC) was established on December 8–9, 1995, that included 55 members from 40 countries and 15 agencies. At the same time a Steering Board was created with eight country members (selected from among the PIC countries) and three international organizations (EU Presidency, EU Commission, Organization of the Islamic Conference). This Steering Board served, and still does, as the executive arm of the PIC and is chaired by the High Representative.

Initially this OHR had little authority and budget, but at a December 1997 meeting in Bonn the PIC granted substantial powers to the OHR, including the authority to adopt binding decisions when local political entities were unwilling or unable to act, and to remove from public office those who violated the DPA and other legal commitments. In 2020/2021, the OHR's budget amounts to 5,327 million Euros and employs 13 internationals and 76 nationals (based on the most recent information: July 2020).

This budget is very limited in light of the many and important functions the OHR still fulfills in Bosnia. The role and position of High Representative has evolved from being a coordinator for international efforts to one that seeks to establish Bosnia as a working sovereign entity to something for which no term really exists. Despite his extensive powers, he is no authoritarian dictator (hence why Bosnia's case is a non-authoritarian type of controlled democracy). Also, since he is not the highest-ranking officer in a territory that is part of a larger empire, he is also not a viceroy. Finally, since he does not represent a specific “mother” country, as in the case of protectorates of old, he is also not a (High) Commissioner (as in the case of former British protectorates) or governor. At best, it is a protectorate of an (not the) international community.² Two other examples where this situation existed are Kosovo (between 2008 and 2012) and East Timor (between 1999 and 2012). At the same time, given the dysfunctional national institutions, the OHR is pretty much the only institution that binds the ethnic groups in the state of Bosnia together. Perhaps one could even argue that the OHR is the kind of temporary institutional fix that somehow must serve the interests of both a national and an international community.

In this article we first analyze this unusual institutional arrangement using a simple neo-institutional framework. Given that neo-institutional studies emphasize the importance of evaluating the success and failure of organizations and institutions in their cultural and historical context, we then give some attention to the decades and years preceding the DPA. Next we describe the institutional structure set up for Bosnia by the DPA and can then analyze the role and position of the OHR in relation to the national institutions. We emphasize in this article the early years of the OHR and the historical context, since only then it is possible to grasp what is happening presently in the country.

Neo-Institutional Theory: Connecting Structure with Local Values

It seems mundane to observe that the choices and preferences of actors (whether as individual people, or as organizations and/or institutions) are embedded in cultural and historical contexts (Powell and Dimaggio 1991, 10; Peters 1999, 2, 26). This is nevertheless often forgotten by those who, with the best of intentions, introduce political and administrative reforms in a territory other than their own, simply ignoring that “innovations have failed when introduced into societies with non-supportive cultural and institutional traditions” (Aldrich 1979, 22; see also Chandler 2000, 9). This is even the case with adopting reforms from one region in a country to another as Ostrom's research in Nepal has shown (e.g., Lam and Ostrom 2010). It is very difficult to simply copy or transplant (one could actually say ‘impose’) institutional practices from the liberal democracies of the Western world into territories with a very different, often monocratic, past. In countries where institutional development has been predominantly a bottom-up process in fairly homogeneous societies, and where the majority of the population holds to shared values, history, and customs, some organization-sociological literature suggests that a striking homogeneity exists between practices and arrangements in labor markets, schools, states, and corporations (Powell and Dimaggio 1991; 9: see also Hofstede, Hofstede, and Minkov 2010).

Early institutional analysis focused on descriptions of the structural arrangements of organizations, but since the 1980s the attention has shifted to the interaction between organizational structure on one hand, and the values that the organization stands for and is influenced by on the other. There is also more attention for the interplay between institutional and organizational framework on one hand, and human agency on the other, which is known as methodological localism (see, for example, Little 2020, 8, 29; Raadschelders 2020, 56). Organizational values are, to a large extent, influenced by the institutional environment and influential human agents. The analytical distinction between institution (value) and organization (structure) seems to be quite accepted (Blondel 1990, 8–9; North 1990, 4; Uphoff 1986, 8–9). Some institutions are not organizations, such as the institution of marriage; some organizations are not institutions, such as many public organizations; and some institutions are organizations as well, such as the United States Supreme Court. Uphoff’s (1986, 9) definition of an institution is useful in the context of this article: “institutions, whether organizations or not, are complexes of norms and behaviors that persist over time by serving collectively valued purposes … Some institutions have an organizational form with roles and structures, whereas others exist as pervasive influences upon behavior.”

Emphasizing that institutions are socially constructed and, implicitly, constantly evolving is found in the following definition: “Institutions are the rules of game in a society or, more formally, are the humanly devised constraints that shape human interaction” (North 1990, 3). That institutions are always in flux is pointed out by Johan Olsen (1995, 5): “A ‘living’ institution, then, is a collection of practices and rules, defining exemplary or appropriate behavior for groups of actors in specific situations. Such practices and rules are embedded in structures of meaning and schemes of interpretation which explain and legitimize practices and rules.” That collection of continuously developing (and underlying) rules, values, norms, and behaviors provides the context within which actors (as individual people or as organizations) make decisions and strategize (North 1990, 5). In that sense, institutions are path-dependent: that is, they develop over time and bottom-up, a process that can be described in terms of stages. This has been called a ‘lean’ concept of path-dependency (Raadschelders 1998, 580) that allows for the possibility that present choices are not necessarily constrained by the past. This ‘lean’ concept can be contrasted with a ‘strong’ concept that emphasizes the possibility to predict developments on the basis of the past. A strong concept of path-dependency is then grounded in law-like generalizations and suggests that freedom of choice is limited; i.e., constrained by past experiences.

Institutions serve to legitimize certain practices and behaviors and thus provide an authoritative foundation for action. This legitimizing function is very important for the role and position of government in society, since only government (at least in democratic states) has the authority to make binding decisions for a population as a whole. Reminiscent of Isaiah Berlin's (2002 [1969], 178, 185) distinction between positive and negative freedom, we introduce a distinction between positive and negative legitimation with regard to institutions. When an institution (or set of institutions) is recognized as representing and affirming shared values, norms, and customs in a given society, its function is one of positive legitimation. If, though, an institution (or set of institutions) merely serves to bind various people together who do not have this sense of shared values, norms, and customs, then its function is one of negative legitimation; that is, the institution functions for the time being and for lack of a positive (i.e., shared) alternative.

We also define a state as “strong” when the political-administrative superstructure functions upon the basis of positive legitimation, which is in turn and at least in part, grounded in a social-economic situation perceived as favorable by the population at large. A weak state, on the other hand, is one where the existing institutional arrangements are shaky, where these institutions do not appear to contribute to overall improvement of the socio-economic situation, and where the local and international elites and/or non-state actors opportunistically manipulate this weak-state environment to advance their own (ethnic and/or political) agendas. The introduction of new institutions next to existing ones may well result in an institutionalization where the new formal “rules” are aligned with the existing formal and informal rules. However, when such alignment does not occur, a state's leadership and its population may well be stuck with an “empty shell” (Dimotrova 2010).

Related to the subject of institutions and institutionalization is the distinction made by Scott (2008, 51) concerning the three pillars upon which institutions rest. The regulative pillar concerns rule setting and sanctioning, and its legitimacy rests in appropriate application of rules and sanctions. The normative pillar circumscribes the evaluative and obligatory dimension and its legitimacy rests in moral authority. Finally, the cultural/cognitive pillar involves shared conceptions and frames through which the meaning of values and rules is understood, so that the basis of legitimacy is the extent to which it is culturally supported.

The international efforts to establish democracy in Bosnia have been ongoing for more than two decades, and since it does not appear that the country's political institutions can function without this international presence, we need to assess the extent to which democracy has been achieved. For that we use the three elements that Linz and Stepan (1996, 6) identify as constituting a “consolidated democracy”:

Behaviorally, a democratic regime in a territory is consolidated when no significant national, social, economic, political, or institutional actors spend significant resources attempting to achieve their objectives by creating a nondemocratic regime or turning to violence or foreign intervention to secede from the state.

Attitudinally, a democratic regime is consolidated when a strong majority of public opinion holds the belief that democratic procedures and institutions are the most appropriate way to govern collective life in a society such as theirs and when the support for antisystem alternatives is quite small or more or less isolated from pro-democratic forces.

Constitutionally, a democratic regime is consolidated when governmental and nongovernmental forces alike, throughout the territory of the state, become subjected to, and habituated to, the resolution of conflict within the specific laws, procedures, and institutions sanctioned by the new democratic process.

Scott's (2008) regulative pillar is reflected in Linz and Stepan's constitutional element, the normative pillar in the attitudinal element, and the cultural-cognitive pillar in the behavioral element of consolidated democracy. This straightforward framework will serve the analysis in sections three and four.

Historical Background to the Conflict in Bosnia-Herzegovina and the Dayton-Accord

Bosnia-Herzegovina is one of the states to emerge from former Yugoslavia, just as Serbia and Montenegro, Macedonia, Slovenia, Croatia, and (later) Kosovo. This Yugoslavia (literally: land of the south-Slaves) was created after the First World War (1918) and contained various nations that had frequently warred in the past. As early as 1920 the Dutch social scientist Steinmetz (1920, 79) doubted that this state would last long. Causes for the troubled relation between these nations rested in the far past. One can actually claim that as early as the great schism between the Catholic and Eastern Orthodox Churches (1054 CE), the foundation was laid for later conflict. Serbians are predominantly Eastern Orthodox, while the majority of Croatians are Catholic. This religious cleavage mattered in former Yugoslavia where the distrust between Serbs and Croatians was strong, and this partially explains the dissolution of the country. The conflict between Serbia and Croatia was one between former subnational states (i.e., regional levels within Yugoslavia), while the conflict in Bosnia was one within a subnational state. The situation in Bosnia was actually more complex because of a third population next to the Serbs and Croatians, the Bosniaks. Steinmetz (1920, 80–90) believed these Bosniaks to be Croatians of origin who converted to Islam, the faith of a previous occupier; i.e., the former Ottoman Empire. In 1991, and according to the CIA fact sheets (which are estimates only), the population of Bosnia consisted of 43.7 percent Bosniaks (1,905,829 million people), 31.4 percent Serbs (1,369,258 million), and 17.3 percent Croatians (755,895) (Detrez 1996, 251). The other 7.6 percent included people who called themselves Yugoslavs (among whom number Jewish people). Conducting a people census (as demanded by the EU Commissioner for Integration, Olli Rehn, in 2010 and considered a requirement for entry into the EU) has since then been a very sensitive issue because Bosniaks (i.e., Muslims) and Bosnian Croats fear that ethnic cleansing and geographic displacement may result in a decline of their numbers and percentages in comparison to those of 1991. A population census is important because the distribution of power (and money) depends upon the size of each group (Trouw 2010). A census was held in 2013, but the final results were published on June 30, 2016 (!). These results are still contested by the Bosniak Republika Srpska. The reason for this delay is lack of agreement between the two main groups about how to count. This is illustrative for the overall challenges in contemporary Bosnia. The results of the recent census are: Bosniaks: 50.12 percent; Serbs: 30.83 percent; Croats: 15.43 percent; others: 2.73 percent (on a total population of 3,531,159). In comparison to the 1991 CIA percentages, the Bosniaks have increased their numbers significantly. This census is important, because it included data about ethnicity, language, and religion, collected in an area torn apart by civil war in the 1990s. The interest in and for such data is in part because minorities pursue certain civil rights on the basis of these data (Hoh 2017, 2018).

Ethnic tensions were not the only cause of conflict in Bosnia. The history of Yugoslavia witnessed periods of ethnic tension alternated by periods where the various populations lived peacefully side by side. The so-called millet system Detrez 1996, 15–17), where the various religious communities enjoyed a large amount of autonomy within the Ottoman Empire, allowed these communities to live peacefully for centuries within one polity. This continued to be the case for Marshal Tito's Yugoslavia in general, and for Bosnia more specifically. Tromp (1996) and Detrez (1996) both suggest that political and economic challenges played a role in the dissolution of Yugoslavia and thus contributed to the conflict in Bosnia. It is clear that in former Yugoslavia serious economic differences existed between communities and regions. The gross national product in Slovenia (1978) per head of the population was indexed at 205—where 100 was the average for Yugoslavia as a whole (Detrez 1996)—in Kosovo at 29, Macedonia at 68, Bosnia at 62, Croatia at 127, and Serbia at 98. The differences between the North and the South of Yugoslavia were enormous. Not that Yugoslavians noticed much of this since the average net income per head of the population varied from 80 percent to 124 percent (the average for former Yugoslavia was 100 percent) indicating that substantial financial transfers were made from the North to the South. The northern regional states accepted this situation in exchange for more independence. With the new Yugoslavian Constitution of 1974, the regional states acquired more power (Detrez 1996, 144; see also Singleton 1976, 274–280). Decisions had to be made unanimously, and it even went as far as regional states engaging in relations with sovereign states outside Yugoslavia. From 1977 on, the regional states within Yugoslavia enjoyed fiscal sovereignty. Each of these ‘republics,’ as they were called, had their own railway system with train-systems from the various regional republics not connecting well, and they had their own currency policy (Detrez 1996, 170).

It was the Communist party that held Yugoslavia together, and its break-up (which started with the death of Marshall Tito in 1980 and lasted until the early 1990s with the creation of five new states), together with the need for economic reforms, expedited the dissolution of the country. The communist parties in each of the regional states developed into nationalist parties, with the party-elites stimulating the nationalist sentiments in order to solidify their power. Tromp (1996, 29) suggests that extremists started the war and that it was the war that created ethnic conflict rather than the other way around (see also Detrez 1996). Slovenia and Croatia were the first to declare independence. After a brief war, the Yugoslavian Federal Army (dominated by Serbs) withdrew from Slovenia. In January of 1992 a peace plan for Croatia was accepted. In that same month Macedonia left the Yugoslavian Federation, while Izetbegovic declared Bosnia-Herzegovina independent on March 3, 1992. The Bosnian Serbs resisted this and were supported by the Yugoslavian Federal Army. Following a very bloody war that cost at least 110,000 lives,³ the Dayton Peace Accord was signed.

The gradual disintegration of Yugoslavia ultimately caused the war in Bosnia. The Croatians desired to be joined with the Republic of Croatia, while the Bosnian Serbs wished for a link to Serbia (i.e., Little Yugoslavia or Federal Republic of Yugoslavia). At first, Izetbegovich, the leader of the Bosniaks at the time, tried to save Yugoslavia after the split of Slovenia and Croatia. Should that not be possible, then an independent multicultural state was the Bosniak preference. Detrez (1996, 206) indicates that Bosniaks only have an absolute majority in some parts of the country and thus had no interest in breaking up the territory. The Dayton Accord was established under huge pressure from the international community (see Holbrooke 1998) that did not accept that Bosnia would be divided between Serbia and Croatia with a small, possibly independent, Muslim state in-between. Holbrooke (1998, 233) suggests two reasons for this. First, the international community did not wish to legitimize Serbian aggression and stimulate the Croatian strive for annexation. Second, there was fear that dividing Bosnia would result in ethnic conflict in Central and Eastern Europe. Since then, both these reasons have rendered the situation in Bosnia as still unstable, so that the EU (although to lesser extent in the past years) and the Office of the High Representative cannot but continue to play an important role. The situation in some of the other parts of former Yugoslavia is much more stable, especially in Slovenia and Croatia. Only the situation in Kosovo is somewhat comparable to that in Bosnia.

The Unusual Institutional Structure of Controlled ‘Democracy’

None of the warring parties wanted the current institutional structure, but it was imposed by an international community (Cohen 1998, 104). Serbs and Croats would not have accepted a strong state structure, given their wish for a divided Bosnia. Even the designation of ‘federation’ could not meet with acceptance from the various ethnic groups. In order to meet the contradictory demands of the three main ethnic groups, a highly decentralized structure was chosen (just as in former Yugoslavia after 1974).

The Constitution describes a state that contains two entities: the Bosnian-Croat Federation (51 percent of the territory) and the Republika Srpska (i.e., Serb) (49 percent of the territory). Both enjoy a high degree of independence.⁴ The central state has a few common institutions but only a limited number of tasks. The four most important common institutions are the Presidency, the Council of Ministers, Parliament, and the Constitutional Court. The state is financially dependent upon the Bosnian, Croat, and Bosniak entities that often do not fulfill their financial obligations. The Constitution gives veto-power to each of these three ethnic groups within each of the common institutions. The Presidency is held as a triumvirate by a Serb, A Croat, and a Bosniak, each elected by the citizens of the Federation (Croat and Bosniak) and of the Srpska Republic (Serb). The Presidency is supposed to seek consensus, but when this is not possible two of the three members can make a decision. In the case that the third member finds that such a decision conflicts with the vital interest of his ethnic group, the possibility exists to veto the decision. The other common institutions operate under comparable arrangements, such as that each minister has two substitutes (always from the other two ethnic groups) who also hold veto-power.

Article 1.2 of the Dayton Accord holds that “Bosnia and Herzegovina shall be a democratic state under the rule of law and with free and democratic elections” (Hayden 1998). This sounds good on paper, but how can democracy be established? Ramet (2006, 471–472) distinguishes two approaches. In the “Kemalist approach” (named after Kemal Atatürk) a stable democracy can only be built from above and upon tolerance between different multiethnic groups. Hence, before elections can be held the population should be educated into what it means to live in a democracy, that is, a polity where citizens enjoy their freedom through exercising self-restraint.⁵ In this approach the international community plays an important facilitating role in helping to build democracy. By contrast, the “Weimar approach” (named after the manner in which the Weimar Republic was established) is one that favors elections as soon as possible with very little external support. Any international involvement can only result in establishing a “fake democracy” (Chandler 2000).

From the outset, however, the three ethnic groups were neither involved in ratifying the Constitution nor could they agree on symbols to represent the new polity. The Constitution is thus one that has international support, but little from those who are supposed to be governed by it. As for the state symbols of currency, flag, and coat of arms, again, the three ethnic groups could not agree, and so the High Representative stepped in and designed a currency. For lack of consensus among the ethnic groups, the High Representative also designed a neutral national flag, prompted by the need to have one for the 1998 Nagano Winter Olympics. Finally, the Coat of Arms, to be the official seal of the new state, was also designed by the High Representative since the Presidency and Parliamentary Assembly could not come to agreement (Hayden 1998). Perhaps Bosnia-Herzegovina is a “fake democracy,” as Hayden called it, but it is certainly a non-authoritarian “controlled democracy” where nationally grounded democratic institutions are controlled through non-democratic mechanisms (Bojkov 2003, 42) and that has everything to do with the evolving role of the High Representative.

Role and Position of the Office of the High Representative: Anchor Amidst the Waves?

The position of High Representative (HR) was established in two appendices to the Constitution of Bosnia and Herzegovina. In Annex 10 of the constitution, titled “Agreement on Civilian Implementation of the Peace Settlement,” the HR's task is described as monitoring the implementation of the peace settlement for which he has coordinating, facilitating, and signaling functions. Article V of Annex 10 indicates that “The High Representative is the final authority in theatre regarding interpretation of this Agreement on the civilian implementation of the Peace Agreement.” It is up to the HR to interpret his authority. The exact status of the HR has not been very clear. In his study about the early years after Dayton, Chandler consistently (but incorrectly) calls the HR the High Representative of the United Nations, suggesting the HR to be a functionary operating on behalf of the UN (as indeed was the case in Kosovo). However, Americans were very much against a link between UN and HR as expressed by Bildt (1996, 109): “The UN was becoming a dirty word on the American domestic political scene.” Reports by the HR do not indicate whose official he is other than representing the parties who concluded the Dayton-Accord. However, the UN Security Council resolution 1031 does confirm the importance of an HR in Bosnia. De facto, the HR is accountable to a number of international actors among which the Security Council of the UN, the European Union, and an international gathering of countries involved in the democratic transition of the country. It is thus that the HR operates as a representative of an international community.

From the diaries of Bildt (1996, 109) and Holbrooke (1998, 324, 362), it is clear that the United States were mainly interested in the military aspects of the accord and much less in the civil side of it. Holbrooke's diary also shows that the designers of the Accord discussed the competencies of the HR, but paid scant attention to such practical matters as concerning organization and financing. It appears that the international community envisaged a limited role for the HR, but in practice the role and position of the OHR evolved in something much more. This occurred in five phases. There may be a sixth phase looming on the horizon, but that depends on what the current HR does with one the last decisions of his predecessor (discussed below).

The first phase started on December 14, 1995 and was dominated by organizing elections (see above: the Weimar approach), a task delegated to the Organization for Security and Cooperation in Europe (OSCE) (Van Thijn 1997). These were held on September 14, 1996, and elected the three members of the Presidency, the members of the House of Representatives of Bosnia and Herzegovina, and involved elections for the federation and the Republika Srpska. Common Bosnian institutions did not yet exist. During this time the HR (in the person of Bildt) had hardly any support. In the beginning Bildt did not even have an office or telephone, having to use his own mobile phone. Bildt noted that he “came with a team of five professionals, a briefcase full of UN resolutions and sub-dry agreed texts, and a somewhat imprecise mandate.” He borrowed a car from the Swedish ambassador in Sarajevo, and he and his associates were invited to sleep in the Swedish ambassador's apartment (on benches and on the floor). Following an urgent request to the European Union, he was given a modest budget to open an office in Sarajevo. He was given his first budget in cash: 300,000 German Marks (Holbrooke 1998, 173). In his first office the one telephone did not work, and he and his few associates had to work at night by candlelight. During this time, Bildt spent most of his attention on building the organization he decided to name OHR and on arranging a budget.

The second phase involved the start of national democratic institutions where the HR assumed an attitude of expectation. Following the elections of September 14, 1996 the Presidency consisted of a Bosnian president (from the Bosnian-Croatian federation) and two vice-presidents, respectively from the Croatian community in the Bosnian-Croatian federation and from the Republika Srpska. Each (vice-)president had his own cabinet and they were located in different places. Meetings were held at different locations that had to be “neutral” as much as possible. The force behind that made the presidency function was the OHR. Events and OHR press releases show how few decisions were made by national institutions and the following observation often found in public statement is illustrative: “They agreed to resolve this issue in the next sessions” (Statement on the Presidency, September 9, 1997). Decisions during this second phase were mainly procedural and often concerned the appointment of ambassadors (spoils!). The OHR played a coordinating and facilitating role. For instance, draft decisions were made by the OHR, minutes of presidential meetings were made by OHR associates, and the OHR even took care of transporting (Bosnian) functionaries. In the words of Bildt (1996, 293): “Every meeting of the Presidency required a major effort by the OHR. Apart from the more political effort, there was a large security operation… and the OHR staff was also responsible for all the technical and practical issues involved, including producing drafts and final version of the statement in two alphabets and four languages.” In the course of 1997 the OHR had some 250 associates with offices in Sarajevo, Brussels, Banja Luka, and Mostar (Bildt 1996, 321).

It was during the third phase that the OHR's role and position expanded enormously as response to the fact that common institutions hardly functioned, a problem frequently mentioned in various reports of the OHR. At the Peace Implementation Conference in Bonn (December 9–10, 1997) the OHR is (with Carlos Westendorp as High Representative) given a much larger mandate:

The Council welcomed the High Representative's intention to use his final authority in theatre regarding interpretation of the Agreement on the Civil Implementation of the Peace Settlement in order to facilitate the resolution of difficulties by making binding decisions, as he judges necessary, on the following issues:

a) timing, location and chairmanship of the common institutions;

b) interim measures to take effect when parties are unable to reach agreement, which will remain in force until the Presidency or Council of Ministers had adopted a decision consistent with the Peace Agreement on the issue concerned;

c) such measures may include actions against persons holding public office…

This enhanced mandate allowed the HR to remove Bosnian functionaries from office, to impose laws, and to determine a new flag and currency. The wait-and-see role had been replaced by a much more active role. De facto it is the OHR that governs the country and four examples of OHR decisions in the late 1990s illustrate this.

OHR Press Release 5-3-1999: "The High Representative Carlos Westendorp has decided to remove Nikola Poplasen from the Office of President of Republika Srpska with immediate effect."

HR Report to the UN SG (19): "The three-member Presidency failed to agree on several crucial issues, most prominent of which was the common currency, which, as a consequence, I was forced to impose in accordance with the Conclusions of the Bonn Conference."

HR Report to the UN SG (29): "My Office, together with representatives of the relevant state and entity ministries and international organizations, is working on legislation in the field of telecommunications, civil aviation and immigration."

HR Report to the UN SG (58): "Our primary aim is to break the monolithic control of media by government and political parties and to reorganize the media landscape in line with internationally recognized standards."

By 2004 the OHR had removed a total of 139 public servants, including ministers, members of parliament, civil servants, and judges.⁶ Since 2002 it also vetted candidates for the major ministerial positions at the Entity and State levels. The OHR authority was further strengthened when, upon instigation of the PIC, a Board of Principals was established in 2002 to be chaired by the OHR. The permanent members of this board include EUFOR, NATO headquarters in Sarajevo, OSCE, UNHCR, EUPM, and the European Commission, and meets weekly in Sarajevo. Representatives from the World Bank, the IMF and the UNDP frequently attend its meetings.

By way of brief interlude, it is important to mention that the HR, initially focused and guided by an amorphous international community, oriented itself from 2004 on more and more to the European Union. This increased orientation toward the EU heralded a fourth phase during which the hope emerged that Bosnia-Herzegovina would become a member of the EU. During this (and the later phase five), the HR only made limited use of the authority given at the Bonn Conference in 1997. In fact, quite a few decisions were reversed. For some years the HR even served as special envoy of the EU. A clear indication of this increased focus on the EU is that NATO's provision of military support through IFOR/SFOR was replaced by EUFOR (European Union Force) in 2004. Presently, some 600 EUFOR soldiers serve in Bosnia (their main tasks: to detect mines and train soldiers). Since 2008, Bosnia has been regarded (although not officially) as a candidate for membership of the European Union. The OHR continued to play a key role in establishing Bosnia and Herzegovina as a peaceful and viable state heading for membership of the European Union. With that objective in mind, the PIC meeting in Brussels of February 26–27, 2008, defined the requirements to be met in the so-called 5 + 2 agenda:

Acceptable and Sustainable Resolution of the Issue of Apportionment of Property between State and other levels of government;

Acceptable and Sustainable Resolution of Defense Property;

Completion of the Brcko Final Award;

Fiscal Sustainability (promoted through an Agreement on Permanent ITA Co-efficient methodology and establishment of a National Fiscal Council); and

Entrenchment of the Rule of Law (demonstrated through Adoption of National War Crimes Strategy, passage of Law on Aliens and Asylum, and adoption of National Justice Reform Strategy).

Since these requirements and EU membership imply that the OHR has made itself obsolete, the PIC formulated two more conditions before the OHR could be dissolved:

Signing of the Stabilization and Association Agreement signed in 2008 and ratified in 2010, which is a step (not yet in force) toward membership in the EU; and

a positive assessment of the situation in Bosnia and Herzegovina based on full compliance with the DPA.

There were, though, serious barriers on the road to EU-membership. First, annual reports from the European Commission since 2008 indicate that the required and desired reforms in bureaucracy, in the police, in the functioning of the market economy, and of the judicial system (especially establishing one that truly treats every citizen as equal before the law, and that is less corrupt) has been wanting. One of the last imposed decisions of the OHR was on the Law of Amendments to the Law on Prosecutor's Office of Bosnia and Herzegovina (December 14, 2009). Since then, the OHR has only dialed back various decisions (such as of banishing public functionaries). On June 20, 2016, the EU accepted Bosnia's request for membership. At the time of this writing, in fall 2021, the European Commission perceives 2025 as a possible year of EU-membership, and it has decided to allocate 14.2 billion Euro in support of reforms in countries that wish to accede to the EU. When Bosnia can accede is not clear for various reasons. First, it may be delayed because of lagging domestic reforms. Second, since the 2004–2007 EU-enlargement public opinion in member states has not been very favorable toward further expansion of the EU (Dimitrova and Kortenska 2016, 287). Third, we can imagine that Brexit negotiations may have consumed so much attention that little time was left to conduct negotiations with candidate states. Fourth, and no less important, is that Bosnia-Herzegovina is a member of the Council of Europe since 2002 and thus accepted the European Treaty for Human Rights. An important part of this Treaty is that any national living in a member country ought to be eligible for public office. However, the Bosnian Constitution stipulates that only someone from the three ethnic groups can become president, which effectively excludes Roma, Jews, and anyone who does not (wish to) identify as someone from one of the three ethnic groups. The European Court for Human Rights determined in December of 2009 that the Bosnian Constitution is in violation of the European Treaty for Human Rights (case of Sejdić and Finici v. Bosnia and Herzegovina).

In 2014 (case of Zornić v. Bosnia and Herzegovina) the Court reiterated this ruling and the Bosnian Constitution will have to be adapted accordingly. What is interesting about this and other rulings is that the European Court for the moment accepts the position of High Representative as is. Equally intriguing is that the court explicitly noted that it accepted the Bosnian Constitution in the years following the Dayton Accord, but that so many years have passed since, that it must now follow a more principled course. In the 2009 ruling mentioned above, the Court accepts that the HR has substantial authority, thus confirming and acknowledging the Bonn agreement of 1997, but that he does not have the authority ‘in practice’ to amend the Constitution. It is striking that the Court's formulation (‘in practice’) is such that it does not seem to exclude the possibility of a Constitutional amendment by the HR. Indeed, the Court points out that in the past the HR corrected a typo in the Constitution, not by making a decision, but by simply informing the Bosnian Presidency of the correction.

Six years after the PIC meeting of February 2008, the PIC steering board meeting of May 21–22, 2014 reiterated its and the OHR's commitment to fulfilling the 5 + 2 agenda (PIC 2014) and this marks the start of the fifth phase. At this point (and actually already since 2011) the HR is no longer representing EU-interests. The intention to make the HR obsolete is no longer the central objective, but, since the old ethnic tensions have not dissolved, Bosnia cannot function on its own; i.e., without the OHR. The fear that civil war might flare up again is palpable (Kupchan 2021), especially with a changing international situation at the borders of the EU and NATO. And, it does not help that Russia supports the possibility of the Republika Srpska becoming independent (b92.net 2021), especially as it considers the appointment of HR Schmidt as illegitimate claiming an unsound appointment procedure. In other words, nothing has really changed. The OHR continues to play a key role since, in the HR Inzko's words, “The same old mistake—putting the interests of a privileged political class before those of the country and its citizens—continues to be made” (OHR 2014). In fact, Inzko expressed being “increasingly concerned that the country is in danger of falling into a vicious downward cycle of spiteful tit-for-tat politics that it will be difficult to emerge from” (OHR 2014). At the same time, Inzko himself added to internal tensions by attempting to rule that genocide-denial would be punishable. In a recent declaration of the PIC both parties are about to acknowledge the decision. However, the Russian Federation (a member of the PIC) does not support this decision, and it can actively derail decision by voting against the majority. In the words of the Russian ambassador in the UN Security Council: “As a guarantor of the Dayton Agreement, we are a member of the PIC, but we do not work in the OHR while Christian Schmidt is there. We do not support any official contacts with Schmidt." He also denounced Inzko's decision to impose a law banning genocide denial as "subjective and unbalanced" (b92.net 2021).

While Russian military maneuvers at the Ukranian border are attracting most of the international attention, it is clear that Russia seeks to create problems for the EU, and especially its democratic member states, by supporting the Serbian leader Milorad Dodik's steps toward taking responsibility in December of 2021 for tax collection, justice, defense, and security. These are regarded as steps toward separation. A few weeks later, on January 5, 2022, Dodik officially celebrated the 30th anniversary of the Republika Srpska, a provocation to the other two entities in Bosnia and considered unconstitutional by the Bosnian constitutional court (Miner 2022). In support of EU-efforts to hold Bosnia together, the USA imposed sanctions on Dodik (Aljazeera 2022).

Phase five looks very much like phase two. During phase two the hope for successful new elections and new relations (i.e., the hope during phase one) evaporated. In phase three and (to lesser extent) phase four the HR played a more active role in the hope of laying the foundation for EU accession. That hope seems to have evaporated as well, and so far there is little reason to believe that this may change any time soon. (EU-EC 2020).

Since then, not much has happened in Bosnia in general, and with regard to action of the HR in particular. The decisions the HR made concerned mostly the withdrawal of earlier decisions. Step-by-step, measures of earlier years, based on “Bonner authority,” were hollowed-out. It did become clear that Inzko (who has been the longest serving HR, 2009–2021) would not be the last HR, and was succeeded in August of 2021 by Christian Schmidt. The ‘international community,’ and especially the PIC, feared that abolishing the HR would result in a new civil war in Bosnia. In that sense, one could argue that the fifth phase is still ongoing.

We did mention above a possible sixth phase, and that has to do with the fact that HR Inzko, shortly before stepping down, took the remarkable decision to make genocide-denial (see endnote 2) punishable by law in Bosnia on the basis of the so-called “Bonner authority.” This decision especially concerns the (high-placed) Bosnian Serbs who deny genocide. It is remarkable because executing this decision rests in the hands of his successor. Should Schmidt decide to accept the decision, it could result in a very explosive situation in the Serbian part of Bosnia. Active support of this genocide decision, and more active decision making by the HR would constitute a new, sixth, phase. It this does not happen, the fifth phase will continue.

Explanation and Analysis

How is it possible that, after more than 25 years of attempting to build democracy, the Bosnian state is not getting any closer? We will first provide some explanations and then analyze these in terms of the parsimonious analytical framework presented in section one.

From the description in the preceding section, it is clear that the OHR has developed into the core institution that holds the Bosnian state together. The formal national institutions established on the basis of the Dayton Accord do not function very well. The one exception is the Bosnian Constitutional Court that has charted a clear pro-Dayton and pro-HR course. This malfunctioning of most formal national institutions was the case from the beginning and is why the OHR has come to center stage in the transition to democracy. There are several explanations for this.

First, in the Constitution the institutional arrangement for the new state emphasizes decentralization and consensus. Such an arrangement may make for difficulties with decision making, as Scharpf (1988) noted for Germany, but there may be advantages as well (Hendriks and Toonen 1998, 29). However, the big difference between Bosnia-Herzegovina and Germany is that in the former none of the three ethnic groups wanted, and still do not want, this state structure. Especially in the Republika Srpska separatist voices are increasingly heard. Consensus was also stressed in former Yugoslavia, but there are two differences between that and the present situation in Bosnia. First, the civil war left severe wounds and, second, a common ideology (such as communism before) is lacking. There was and is no real reason for the three entities to collaborate. Many tasks have been performed at the decentralized level, and the Constitution offers veto-rights to the three ethnic groups over all national decisions. The constitutional basis and the unwillingness to collaborate reduced the common institutions to mere words. The national state only existed and exists on paper. The international community was dissatisfied with this and that resulted in an ever-stronger position of the HR. It is as Hendriks (1996, 97, our translation) states: “Administrative conventions develop within the bedding of a formal institutional arrangement, but cannot be directly derived from it. Between formal rules and everyday practice stand interpreting subjects who develop a modus vivendi in interaction with one another, which, then can start leading its own life as an institution.”

Second, the HR consciously developed from being the representative of those who concluded the Dayton Accord (the formal position) to being (informally) the representative of an unspecified international community (Bildt 1996). He is accountable to the PIC, to the UN Security Council, and (increasingly since 2004) the European Union. It is thanks to this international support that the HR could develop into such a powerful office. Keep in mind that the OHR is not the only institution that monitors day-to-day business in the country. For instance, a contingent of NATO soldiers (SFOR) and later EUFOR (EU)⁷ helps prevent another civil war from breaking out and the HR can in theory use SFOR/EUFOR to assure compliance with his decisions such as constraining nationalist media outlets, or removing Bosnian functionaries from their offices when they have been fired. Elections (such as those in November 2014) are organized by the OSCE. This international community has even penetrated the constitutional court of the state: to date, three of the nine judges have been appointed by the European Court of Human Rights. Also, the first Governor of the Bosnian Central Bank was appointed by the International Monetary Fund (IMF). Yet another example of international ‘interference’ is that the European Union will only accept license plates for cars and passports if they have been approved by the HR. However, each of these international organizations has no mandate to interfere in the domestic realm. It is through the HR that this international community influences the functioning of the common institutions. To be sure, at the start, there was no reason to believe that the HR would develop into this powerful role, had not the first HR (Bildt) sought active support from international organizations, again exemplifying that governing institutions are ‘human-made’ arrangements where individual actors and institutions influence one another (Hendriks 1996, 91).

Third, the HR is likely not to have developed its position of power so far without some degree of support from and within Bosnia. The HR is supported by the Bosnian Constitutional Court that legitimized its actions various times, perhaps not from a juridical but certainly from a pragmatic point of view. Perhaps the term ‘tolerated support’ captures this. Even though there has been criticism within the Bosnian community (see, for example, Chandler 2000, 71), major incidents have not occurred. Members of Bosnian formal institutions get together, even though they usually do not make decisions. Possibly, and as Chandler (2000, 71) suggested, they find it agreeable that tough decisions are made by the HR. Could history explain this? Can developments in Bosnia be understood in terms of ‘lean’ or ‘strong’ path-dependency? Traditionally, the territory that is now Bosnia-Herzegovina has been dominated by other polities. The millet system developed under the Ottoman regime, while communist domination did not really encourage a participative and verbal population. In that perspective it might seem that whatever can happen in Bosnia is constrained by past experience (‘strong’ path-dependency). At the same time, we see that what has happened in Bosnia since 1996 can also be understood in terms of ‘lean’ path-dependency since the pragmatic acceptance of the HR's binding role (i.e., binding ethnic groups) has prevented civil war thus far, and that suggests that the opportunity to outgrow these ethnic differences is not impossible.

In terms of the straightforward theoretical framework outlined earlier in this article, the regulative pillar is not sufficiently developed internally. It still rests much upon the interventions of the HR with support from that international community of organizational actors. Hence, the constitutional element that Linz and Stepan (1996) mention has not been internalized, and still depends upon ‘foreign’ imposition. Scott’s (2008) normative pillar, concerning the moral and obligatory element, has not been realized either so that attitudinally (cf. Linz and Stepan 1996) public opinion, i.e., the citizens’ efforts at moving toward democracy, has not ‘panned’ out in changes among those considered to belong to the political elites. Finally, the cultural-cognitive pillar, which we linked to the behavioral aspect of Linz and Stepan's consolidated democracy, is equally wanting. The ethnic groups in Bosnia-Herzegovina do not appear to strive for ‘shared’ understandings and conceptions, again, because the subnational political elites still seek to advance their own interests rather than that of the state of Bosnia. Thus it is that we argued how Bosnia is governed on the sole basis of negative legitimacy as values, norms, and custom are not shared among the three entities that make up the state.

In the past more than 25 years, the OHR can indeed be described as a stabilizing anchor amidst the waves of ethnic differences. For a democracy to truly function, the continuation of the OHR's office is undesirable. A more satisfying arrangement should come from the Bosnian populations itself (the Weimar approach). The alternative is that the international community in the form of the OHR intervenes again and, among others, imposes a new Constitution (an alternative that appears not to be rejected altogether by the European Court of Human Rights) with the hope that the Bosnian population will accept this just as it accepted in the past the authority of external institutions (the ‘Kemalist’ approach). Neither alternative seem to have much traction, but somehow a new (sixth) phase must start with an outlook for real progress.

Concluding Comments

When the Dayton Accord came into effect, it created new institutions while the old ones did not disappear. These ‘old’ institutions (mainly, bureaucracy) were formed in the old Yugoslavia and the subsequent civil war. New, national, institutions were established through the Dayton Accord, but so far they have had only a virtual existence (especially in the early post-Dayton years). The HR and the OHR represents a third type of institution (next to the existing bureaucracy and the new political institutions), built from 1995/6 on and successful in that it was able to consolidate power in Bosnia-Herzegovina. However, from the start the OHR was intended as a temporary solution, developed so that the Dayton institutions could truly function as a democratic mechanism in this new republic. Success of the OHR is assessed by when it can be dissolved. It was never the intention that the OHR developed into being such a powerful position. While the various actors in Bosnia-Herzegovina desire to “remove” themselves from the contents of the Dayton Accord, the OHR has attempted to keep these actors on the “right” track toward democracy. For all the good intentions of Western democracies, the lesson is that establishing a democracy is not comparable to “flipping a switch.” No one can impose a democracy when the constituent parties of an internationally imposed territorial state are not prepared to talk with each other “eye to eye” and overcome ethnic differences. Furthermore, and perhaps equally important, when such a new territorial entity becomes yet another plaything upon the waves of international political tensions, and its internal divisions exploited by both domestic (e.g., Dodik) and international actors (e.g., Russia), any avenue toward strengthening democracy is blocked.

There are two lessons in this case. First, peoples have to recognize that they, fundamentally, have to co-exist, irrespective of ethnic, religious, and political affiliations. The peoples who are circumscribed in and by this Bosnian-Herzegovinian state have not recognized that yet. They and their institutions do not operate upon positive legitimacy, but rather on negative legitimacy. The lesson is that no HR or international organization can make people understand that democracy is about exercising self-restraint. Second, an or the international community must come to understand that efforts at establishing a democracy are futile when there is no cultural-cognitive basis to work from. It is easy for Westerners, such as the authors of this article, to argue that democracy thrives upon self-restraint, but in a territory where people have been engaged in blood-feuds, in civil war, and in (“whipped-up”) ethnic conflict it must be hard to trust each other and to trust the intentions of outsiders. No matter how much support the HR enjoys among international actors, it still has to convince the locals and navigate Russian efforts subverting democracy. We need to explore a different way of inculcating democratic principles in areas where people do not have the experience of democracy growing from the bottom up. That is the challenge the Western world should face and embrace. Imposing institutions just does not work.

Footnotes

About the Authors

Gerrit S.A. Dijkstra, Ph.D., JD, is a senior member of the Institute of Public Administration, University of Leiden. His research focuses on the relationship between law and public administration and civil service systems general. In 1999 he was an adviser to the European Commission regarding the institutional structuring of Bosnia. He visited Bosnia in 1998 a few times. He advised also the Office of the High Representative. During these visits he had several meetings with high Bosnian and international officials.

Jos C.N. Raadschelders, Ph.D., is a professor of public administration at the John Glenn College of Public Affairs, The Ohio State University. He serves as Associate Dean of Faculty, and as Faculty Director for Professional Programs. His research interests include administrative history, comparative government, civil service systems, epistemology of the study of public administration, and social ontology of government.

ORCID iD

Jos C.N. Raadschelders

Notes

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